GJM v The State of Western Australia
[2008] WASCA 178
•28 AUGUST 2008
GJM -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 178
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 178 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:104/2007 | 4 AUGUST 2008 | |
| Coram: | McLURE JA BUSS JA MURRAY AJA | 28/08/08 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GJM THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Indecent dealing with child Whether verdicts of guilty unreasonable or cannot be supported by evidence Turns on own facts |
Legislation: | Nil |
Case References: | Azarian v The State of Western Australia [2007] WASCA 249 Jones v The Queen (1997) 191 CLR 439 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Reppas v The Queen (1998) 20 WAR 178 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : GJM -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 178 CORAM : McLURE JA
- BUSS JA
MURRAY AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MAZZA DCJ
File No : IND 857 of 2006
Catchwords:
Criminal law and procedure - Indecent dealing with child - Whether verdicts of guilty unreasonable or cannot be supported by evidence - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr T F Percy QC & Ms M E Geary
Respondent : Mr D Dempster
Solicitors:
Appellant : Dwyer Durack
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Azarian v The State of Western Australia [2007] WASCA 249
Jones v The Queen (1997) 191 CLR 439
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Reppas v The Queen (1998) 20 WAR 178
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
(Page 3)
1 McLURE JA: I agree with Murray AJA.
2 BUSS JA: I agree with Murray AJA.
3 MURRAY AJA: This is an application for leave to appeal against the appellant's convictions in the District Court following guilty verdicts returned by a jury of six offences, all said to have been committed upon the appellant's grandson.
4 The indictment charged the following counts -
1. On an unknown date between 1 January 2005 and 8 July 2005, an offence of indecently dealing with the child under the age of 16 years 'by showing him pornographic movies'.
2. On the same date, sexually penetrating the child by inserting his penis into the child's mouth.
3. On a different unknown date, between 1 January 2005 and 8 July 2005, indecently dealing with the child by masturbating to ejaculation before the child.
4. On a different unknown date between 1 January 2005 and 8 July 2005, indecently dealing with the child by masturbating in his presence.
5. On the same date and place as count 4, indecently dealing with the child by masturbating the child's penis.
6. On the same date and place as count 4, indecently dealing with the child by allowing the child to masturbate the appellant.
5 It can be seen, therefore, that the offences fell within three groups on three unknown dates, but all of them between 1 January 2005 and 8 July 2005. The child was born on 23 November 1996. He was therefore 8 years of age when the offences were allegedly committed. It appears that the first complaint of the commission of the offences was made by the child to his mother, the appellant's daughter-in-law, on 6 August 2005. An investigation was commenced.
6 Officers of the Child Interview Unit of the Police Force interviewed the child on 19 August 2005. The interview commenced at 1.10 pm. It concluded at 2.30 pm. A further such interview was conducted on 25 August 2005. Again the interview commenced at about 1.10 pm. It concluded just after 1.40 pm. Edited versions of both interviews were admitted in evidence at the trial, pursuant to the relevant provisions of the Evidence Act 1906 (WA).
(Page 4)
7 Pursuant to the provisions of the same legislation, the child's evidence was pre-recorded on 22 February 2007, by which time the child was aged 10 years. That video record was played to the jury at the trial. The process commenced just after 10.10 am and it was substantially comprised of cross-examination by defence counsel. With a break for luncheon, that process concluded shortly before 3.30 pm.
8 On a number of occasions, the judge conducting that process expressed his concerns about the repetitive and oppressive nature of the cross-examination. Given the age of the child, it is evident, I think, that the concerns of the judge were justified. I do not wish to dwell on the matter, but in my view it must be said, because it is relevant to the determination of the appeal, that on occasions counsel cross-examined without due regard for the youth of the witness. There is no doubt, I think, that counsel's aggressive approach would have been evident to the jury. There are some particular matters to which it will be necessary, later, to refer specifically. It is also evident, although not relevant to the decision of the appeal, that the presiding judge displayed restraint and courtesy in his dealings with counsel, despite the rudeness, on occasions, which counsel displayed.
9 The trial commenced before the jury on 30 July 2007. During that day and the following morning the jury were played edited versions of the two video-recorded interviews and the pre-recorded evidence of the child. That constituted his evidence at the trial.
10 The trial concluded with the guilty verdicts on 7 August 2007, with a weekend intervening. On 10 August 2007, the appellant was sentenced to an aggregate term of 5 years imprisonment, backdated to his conviction on 7 August, with eligibility for parole.
The appeal
11 There is one ground of appeal. The necessary application for leave has been referred to the court to be dealt with together with the appeal. The ground is as follows:
Having regard to the evidence, the verdicts of guilty were unreasonable or could not be supported.
(a) The Prosecution's case relied almost exclusively on the uncorroborated evidence of the Complainant.
(Page 5)
- (b) The Complainant's evidence was significantly deficient in a number of material respects so as to render it unsafe and incapable of supporting the convictions to the requisite standard.
Particulars
(i) The Complainant conceded that he had lied about what had occurred on the tractor by initially, in cross-examination, saying the Appellant and [sic] he and the Appellant simply drove around in the tractor with their pants down and nothing else happened. Subsequently in cross-examination he conceded that was wrong and that sex had occurred.
(ii) The Complainant conceded that he had lied about what had occurred on the tractor by initially in cross-examination saying he and the appellant had their pants down for half an hour and then subsequently admitted that this was untrue and that he had had his pants down for only 2 minutes.
(iii) The Complainant's evidence about how the tractor was prepared for work was improbable in light of the evidence of the Appellant and the witness [name] who described what was required to prepare and use the tractor.
(iv) The Complainant's description of the size, colour, markings, dimensions and seating capacity of the tractor was considerably at variance with the exhibits showing the tractor and the evidence of [name].
(v) The Complainant mis-described how the tractor was operated.
(vi) The Complainant mis-described how the stone rake would be used.
(vii) The Complainant gave evidence in cross-examination relating to count 2 which he had not given previously and which suggested further offending.
(viii) The Complainant gave evidence at trial that immediately after count 2 he showered with the Appellant who masturbated the Complainant and allowed the Complainant to masturbate him and that this was the only shower incident. He had said previously that there were numerous shower incidents on different dates.
(ix) The evidence contained in the wages book, together with the evidence of the appellant, [and four named witnesses]
- limited the days on which the incidents in count 2 could have occurred and effectively excluded each of those days.
- (x) The Complainant's evidence about the pornographic movies he describes in his evidence in chief is significantly inconsistent with those he describes seeing in cross-examination.
(xi) The likelihood of the Appellant having pornographic movies was highly unlikely in light of his earlier report to the police and the fact that there were a number of other computers in the household which could cross-access each other.
- (c) The defective nature of the Complainant's evidence as to the various events in question made verdicts of guilty unsafe on any of the counts on the indictment.
12 It can be seen that there is no criticism in any way of the directions given by the trial judge and of the way in which the matter was left to the jury. The ground relies entirely on the Criminal Appeals Act 2004 (WA), s 30(3)(a). There is no dispute between the parties about the way in which the matter raised by such a ground is to be approached.
The test to be applied
13 In relation to a ground of appeal such as this which raises no question of an error of law, nor any question of procedural error affecting the trial process so as to cause a miscarriage of justice, but merely raises a question about the sufficiency of the evidence to sustain the convictions, having regard to the standard of proof of guilt beyond reasonable doubt, the proper approach is that set out by the High Court in M v The Queen (1994) 181 CLR 487, 492 - 493, where Mason CJ, Deane, Dawson and Toohey JJ said, of a case where reliance was placed on a provision such as s 30(3)(a) of the Criminal Appeals Act:
The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand'.
- A little later, their Honours strongly made the point that such a ground and the statutory provision under which it is to be decided did not have the effect of supplanting trial by jury by trial by an appellate court:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is
- unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (493).
14 At 494 - 495, their Honours summed up their conclusion about the applicable law by saying:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Although the propositions stated in the four preceding sentences have been variously expressed in judgments of members of the Court in previous cases, we have put aside those differences in expression in order to provide authoritative guidance to courts of criminal appeal by stating the propositions in the form in which they are set out above.
15 The High Court has by no means resiled from those propositions and it requires a similar approach where an appellate court is required to give consideration to the proviso affecting the obligation to allow the appeal and quash a conviction. That proviso is expressed for us in s 30(4) of the Criminal Appeals Act which provides that:
even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
16 As to the task placed before an appellate court by a provision like s 30(4), in Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, 316
(Page 8)
- [41] - [42] the High Court provided guidance as to the way in which that task is to be approached:
That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.
It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration.
(Page 9)
18 This is asserted to be a case of the kind referred to by Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen at 494. The appellant, in effect, urges upon the court the view that it ought to conclude that the evidence capable of proving the appellant's guilt, that of the complainant, 'contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force' in such a way as to make it unsafe to rely upon that evidence to prove guilt beyond reasonable doubt.
19 Relying on M v The Queen, in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, Hayne J, in respect of a ground such as in this case, said that:
the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt: M v The Queen (1994)181 CLR 487 at 492-493. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt (596) [113].
- Gleeson CJ and Heydon J agreed, adding observations of their own.
20 Put in that way, the task confronted by the appellant is a formidable one. It was no doubt as a result of considerations of that kind and having regard to the inherent limitation of the appellate court - that it is making its evaluation of the case solely on the record and has not the advantage of the jury, that it saw and heard the evidence given - which led Brennan J, in M v The Queen, at 502, to observe that, 'an appellate court can seldom interfere with the verdict of a jury merely on the ground that the verdict is unsafe and unsatisfactory where there is evidence to support the verdict'.
21 None of this is new. These principles have long been accepted and acted upon by this court and the Court of Criminal Appeal before it. A useful recent discussion of the principles to be applied in a case such as the present is to be found in Azarian v The State of Western Australia [2007] WASCA 249 by Pullin JA at [52] and [77] - [79], by Miller JA at [161] - [163], and by Le Miere AJA at [207] - [208].
22 In my view, the difficulty confronting the appellant is heightened by the fact that the various particulars of what are described in the ground as material deficiencies in the complainant's evidence are not alone, or
(Page 10)
- cumulatively, if they can be made out, sufficient to demand that the child's evidence could not be accepted as being probative of the appellant's guilt in respect of any of the offences of which he was convicted. This was not a case, of course, of inconsistency of verdicts, or otherwise of a kind which required the conclusion that the child's evidence should be regarded as being, in effect, completely unreliable: cf Jones v The Queen (1997) 191 CLR 439; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 and Reppas v The Queen (1998) 20 WAR 178.
The prosecution case
23 Against that background I turn to consider the evidence. It is uncontentious that the appellant and his wife were living in a relatively remote country location. Early in January 2005 the complainant child, his parents (the appellant's son and daughter-in-law) and his little sister went there to assist in the renovation of a roadhouse so that it might be reopened as an operating business. That did not eventuate and ultimately, in July 2005, the child and his immediate family returned to Perth. Hence the period covered by the indictment. It was shortly after that, as I have noted, on 6 August 2005, that the child first made a complaint about the matters the subject of the indictment to his mother.
24 As I have said, counts 1 and 2 on the indictment are related charges. The prosecution case was that the appellant was employed as an agricultural worker by Mr and Mrs B on their farm, not far from the place where the appellant and his wife lived. On the day in question, he was to go out to the farm to do some work. It had been arranged that he would take his grandson. Early on the morning in question, while everyone else in the house was asleep, the appellant woke the boy and gave him breakfast.
25 The allegation in relation to count 1 was that the appellant used his computer to show the child pornographic videos which showed sexual acts performed by naked males and females, including a segment showing such activity between a man and a young person. This first count on the indictment therefore charged an act of indecent dealing with the child.
26 Count 2 occurred on the same day, so it was alleged, when the appellant and his grandson had gone to B's farm, where the work to be done was to use a tractor and appropriate attachment to rake stones in a paddock. The appellant drove the tractor and it was alleged that the child was seated next to him when the appellant caused the child to suck his penis, the act of sexual penetration which was count 2 on the indictment.
(Page 11)
27 Count 3 was alleged to relate to an occasion, one of a number of such occasions, when the appellant and his grandson showered together. On this particular occasion it was alleged by the prosecution that the appellant masturbated himself until he ejaculated, and he then caused the child to taste his semen.
28 As I have said, counts 4, 5 and 6 on the indictment were related offences. They were another shower incident, so it was alleged, and referred to an occasion when, as count 4 alleged, the appellant masturbated himself while under the shower with the child. He then masturbated the child, as alleged by count 5, and finally had the child masturbate him, as was alleged by count 6.
29 Apart from the evidence of the child, given in the forms to which I have referred, the prosecution called a Dr Winterton, who examined the child during the course of the investigation, but found nothing to support or refute the commission of the offences charged. The prosecution called the child's mother to give evidence of complaint and what might be described as peripheral evidence about the activities of the household when they were living with the appellant and his wife. Similar evidence was given by the appellant's son.
30 The prosecution called the farmer, Mr B. He gave evidence about the nature of the work to be performed on the farm, when it was performed, the nature of the tractor (of which there were photographs in evidence) and what was required to be done to prepare the tractor for use. The statements of two investigating police officers were read into evidence. Their evidence need not be referred to for the purposes of the decision of the appeal.
The defence case
31 Counsel opened the defence by inviting the jury to scrutinise closely the evidence of the child, because no other evidence to be led by the prosecution was capable of establishing the guilt of the appellant beyond reasonable doubt. Counsel referred to changes in the testimony and asserted that the evidence of the child should be regarded as being unreliable and incapable of establishing guilt.
32 As the trial developed, the appellant elected to give evidence, denying the commission of any act constituting any count in the indictment. He called his wife and Mrs B. A solicitor employed by the firm of solicitors instructing defence counsel gave evidence. There is no need to refer to her evidence. Peripheral evidence was given by a friend
(Page 12)
- who had some knowledge of the domestic arrangements in the appellant's house. Again, there is no need to refer to her evidence.
The 'pornographic movies'
33 I turn to this material because it is concerned with the first count on the indictment and forms the subject of the complaints made in particulars (x) and (xi) of Part (b) of the ground. The material is also significant because, as the child said during his cross-examination:
I used to stay up at night and watch him and his movies and he let me, and that's how it all started. And then on the tractor I thought, because no-one's there, we could do it (ts 121).
34 When questioned by the police on 19 August 2005, the material in edited form which constituted part of the child's evidence-in-chief, the child referred to watching 'gross movies' on the appellant's computer early in the morning, indeed while he ate breakfast, before going out to Mr B's farm. The child said there were a number of these movies, but he did not know where they came from. Later evidence given by the child suggested that they were accessed by going to pornographic websites. Certainly, there was no pornography located on the computer hard drives during the police investigation.
35 The child, in evidence, described the movies by saying that they showed, 'when people sucked their willies and that' (p 21). Later he added that there were apparently scenes of masturbation and a man 'putting his willie up the looloo' of a girl (p 24).
36 When cross-examined the child said, consistently, that he sat next to the appellant while the appellant operated the computer and the child ate breakfast. It was at his grandfather's invitation that this occurred before they were to go to work on the farm. When asked what the movies showed, the child said it was, 'the stuff that grandpop and I did on the tractor' (ts 120). In particular, at ts 121, he said:
So coming back to the movies that you say you watched on that day, what exactly did you see in the movies?---Well, a 12-year-old boy or a 10 year-old boy was sucking on, I think his grandpop's or grandpa's or great grandpa or whatever, willie, and he was putting it all in his mouth.
That's all you saw?---And then the second one was where this girl, she had no knickers on and she had a plate of cream on the ground and she started opening her bum and stuffing the cream in by sitting on it and she kept doing it.
(Page 13)
- The child said that while he and the appellant were doing that, his grandmother woke up, causing the appellant to quickly turn off the computer.
37 As I have said, this was significant evidence, not only because it formed the allegation which constituted count 1 on the indictment, but also because it led to the child initiating the activity which he said occurred on the tractor as the stone-raking process was going on.
38 When the appellant gave evidence, he said that there were a number of computers in the house and they were networked, so that from any one modem access could be obtained to material on another computer. He said that after he had an accident which restricted his physical activity in 2000, he commenced an interest in what was described as digital art, using a 'cut and paste' process to create images of his own which he would preserve in computer files. In some cases, the images depicted men and women naked, but he made no depiction of any sexual activity. Indeed, he said that when, on the web, he encountered images of child pornography, he would forward those particulars to the Australian Federal Police (ts 463). His wife, his son and his daughter-in-law, the other adults living in the house, all gave evidence that although they had seen such images in the computer system in the house, they had seen nothing in the way of movies or videos, and certainly not of the kind described by the child in evidence.
39 In my opinion, the impact which this body of evidence might have on the capacity to accept the evidence of the child as accurate and reliable, needs to be assessed against the background of the child's age, his reaction to the process of providing an account of what occurred to the police on 19 and 25 August 2005, shortly after the child first spoke about what had occurred to his mother, on 6 August 2005, and how the child handled the process of the pre-recording of his evidence, particularly by way of cross-examination, on 22 February 2007.
40 It is very evident from the record that the child had a close and loving relationship with the appellant. During the police interviews he referred to him as 'grandpop' and he corrected the officers if they referred to the appellant by any other description. The child endeavoured to make it clear at a number points during the questioning that he was reluctant to answer questions and he did not want to talk about the 'gross stuff' which had occurred between him and his grandfather, which activity he had, to a degree, himself initiated. During his cross-examination at one point the child refused to be questioned further, although after a lunch break he was able to continue.
(Page 14)
41 The child gave no indication that he had been encouraged or procured by his parents, police officers or anyone else to adopt an attitude of vindictiveness towards the appellant, and there was no suggestion that he had deliberately fabricated his evidence, merely that what he spoke about had not occurred. Indeed, so far as the count 2 offence, which was said to have been committed while they were riding in the tractor, was concerned, the appellant's evidence was that he had never taken the child to the farm where the stone-raking work was performed, and he had never taken him as a passenger in the tractor (ts 513).
42 Certainly there was a conflict of evidence of the most profound kind about the pornographic movies, but nothing, I think, in the matters particularised which should have led the jury to conclude that they were incapable of relying on the child's evidence. There were no substantial inconsistencies between the evidence-in-chief and the cross-examination. It was merely that, when cross-examined, the child added more detail and referred to further incidents not previously mentioned. It may be accepted that there was a risk that the appellant might be detected by others in the household using his computer to gain access on the web to this videoed material, but it was not suggested that that danger should have led to the rejection of the child's evidence as to what occurred early in the morning when he and his grandfather appeared to be the only people awake in the house.
The tractor incident
43 It will be recalled that the event the subject of count 2 was alleged to have occurred later in the day when the appellant took the child with him to Mr B's farm to ride in the tractor with him and be with him generally when the stone-raking work was done. Many criticisms are made of the child's evidence in relation to this incident. They are contained in pars (i) - (vii) and (ix) of Part (b) of the ground.
44 The matters raised include the fact that the child admitted to having told lies about some aspects of the matter. It is suggested that the evidence of the appellant, Mr and Mrs B, the appellant's wife and the child's mother so limited the days on a weekend when the incident could have occurred as to effectively exclude the possibility that it occurred at all. In addition, it is said that the child's evidence was rendered incapable of acceptance because of conflict between it and the evidence of the appellant and Mr B as to the manner in which the work was to be performed and as to the nature of the tractor. It is as well to test those
(Page 15)
- propositions by examining how the child's evidence developed in relation to the incident which was the subject of count 2 on the indictment.
45 It was first mentioned when the child was interviewed on 19 August 2005 (pp 27 - 31). At that time, the child said that first he and then the appellant 'undid' their pants, and the child 'went to suck his willie'. It was his idea. He only did it for a little while and then they stopped. No other 'gross stuff' happened on that day, and that was the only day he went on the tractor with his grandfather.
46 The child confirmed that that was so when he was cross-examined. It was a Saturday or Sunday; not a weekday; not a school day. The child was subjected to lengthy questioning as to the clothing worn by him and his grandfather, and about precisely what they did in relation to the tractor and getting it ready to operate. He was asked detailed questions about the interior layout of the cabin of the tractor. There was conflict between the child's evidence and that of the appellant and Mr B, but to my mind none of it was of particular significance.
47 It demonstrated no more than that the powers of observation and recollection of an 8-year-child in respect of unremarkable detail may not be complete. The child's evidence about these matters may not be relied upon, but it has no impact on the capacity to accept the truth of his account of the activity which constituted count 2 on the indictment. I have in mind in this regard the evidence of the child that the tractor was started as soon as they went to it, against the evidence of the appellant and Mr B about what had to be done to get the tractor ready to start and to organise the equipment for stone-raking. The child said the tractor was yellow with a bit of green. It was yellow with a bit of black. The child said it had three seats inside. It has two. The child may not have accurately observed how the stone-raking procedure was carried out.
48 As to when the tractor incident might have occurred on a weekend during the period covered by the indictment, it appears that the consensus, based on Mr B's records, was that it might have happened on the Easter weekend of 26 and 27 March 2005, or on a weekend in April 2005, but in my view, having reviewed the evidence, nothing conclusive emerges to negate the capacity to accept the child's evidence or to support the appellant's evidence that not only did he not take the child to the farm, but that, having regard to other evidence, he could not have done so within the period of the indictment. The child's mother gave evidence that her father-in-law took the boy out to the farm on a number of occasions.
(Page 16)
49 Mr B said that when the appellant came to work on the farm he usually saw him, but he did not invariably do so. He did not like employees bringing other people onto the property, but that was not evidence that the appellant may not have done so. Mrs B said that she never saw the appellant bring his grandson onto the property. In short, their evidence was, in my view, inconclusive. It did not go so far as to establish, as asserted in particular (ix), that the possibility that the incident which was count 2 on the indictment might have occurred was 'effectively excluded' on any day when it might have happened.
50 As to the incident itself, it can be seen that it was the subject of a relatively brief discussion with the investigating police officers. There was detailed cross-examination. After lengthy discussion about the stone-raking activity, during large parts of which it appears that the child played with a toy on the floor of the tractor's cab, when asked whether anything else happened in the tractor the child replied, 'He did some gross stuff' (ts 89). He went on to say that both of them had pulled their pants down, the child first and then the appellant. The child was cross-examined at length about what sort of pants his grandfather was wearing and how he steered the vehicle while lowering his pants.
51 At ts 94 - 95, the child said they were operating the tractor for some hours. He thought they had been doing so for 'maybe half an hour' before they pulled their pants down, and they left them down for another half an hour before they pulled them back up. Then the child was led to say that after that the work proceeded normally. That questioning concluded as follows:
That's what happened on the tractor. Is that right?---Yes.
And that's all of it?---Yes.
Nothing else?---Nothing else (ts 95).
52 It was left at that, counsel going on to deal with their return home, when the child and the appellant had a shower together, followed by their dinner. When asked if anything happened in the shower, he said he did not remember. Shortly after that, the child was given a break from the questioning and the matter was debated before the judge by counsel. The prosecutor objected that to leave the matter generally in that state was inappropriate when cross-examining a 10-year-old child. His Honour intimated that specific questions should be asked. When the procedure resumed, the following exchange occurred:
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- [Name], you told us earlier that when you were in the tractor - - -?---Can we skip this?
No, I'm required to raise it with you. The situation is that - do you remember that video or that talk you had with those people sometime ago?---Yes.
You remember, do you, that in that talk you had with those people sometime ago that you told them that when you were in the tractor with your grandpop you sucked his willie. Do you remember that?---Yes.
And you've told us today that all that happened in the tractor is that you pulled your pants down and he pulled his pants down. Which is correct [name]?---The one where I said it in the interview.
Sorry, [name]?---The one where I said it in the interview. I just didn't want to talk about it. That's why I lied.
Okay then, [name]. So you lied, did you?---Yes.
Right. What else have you lied about, [name]?---Nothing.
You took an oath earlier, didn't you?---Yes.
Did you understand what that oath meant?--Yes.
That you would tell the truth. Is that right?---Yes.
And you've just told us that you've just got in there and you lied to us. That's right? Is that right?---Yes. I don't want to talk about it (ts 103).
53 At that stage, the child made it clear that he was not prepared to continue to be questioned. He said he did not want to talk about it, and when asked when it was that he said he sucked the appellant's 'willie', he responded, 'I'm not telling' (ts 104). This was the point at which, as I have previously mentioned, the proceedings were interrupted for a lunch break. Upon resumption, the child appeared to have recovered himself because, when he was asked what he said happened in the tractor he said, 'I sucked his willie' (ts 108). When asked how that was done, the child gave a demonstration of moving his head backwards and forwards with his mouth open. He said that happened while the appellant was driving the tractor.
54 After dealing with that matter, counsel returned to the topic of the two of them lowering their pants to around their ankles. The following exchange occurred:
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- When your grandpa - sorry, grandpop, took his pants down to his ankles, he remained seated on the seat the whole time that you did that? Is that right?---Yes. There's another thing that we did.
Just let's leave that. Now, you've told us before, as I understand it, that you had your pants down for about half an hour. Is that right?---No.
Well, I will divide that into two. Do you remember telling us before that you had your pants down for about half an hour?---No, there was no - I didn't leave them there for half an hour.
Do you remember telling us that you did?---Yes.
Was that a lie too?---Yes.
So how long do you now say that you had your pants down for?---I'd say about two minutes.
Two minutes. So you took your pants down round your ankles, you had your pants down there for about two minutes, and during that two-minute time do you say that you sucked your grandpop's willie?---Yes.
Then after you sucked his willie did you pull your pants back up?---No, because then he did something.
I see. So you're saying he did something to you after this had happened. Is that right?---No, not to me. He did something to his own - - -
I see. So you're saying he did something to his own willie, did he?---Yes, and I did the same.
Right?---Do you want me to tell you what it was (ts 111 - 112)?
55 The child then went on to say that after he had sucked the appellant's penis, the two of them masturbated themselves while in the tractor, the appellant to ejaculation. He said he thought he had told the police officers this when they questioned him, but, as has been seen, he did not. This was the first occasion upon which he had mentioned any such activity which was not the subject of a count on the indictment.
56 I have mentioned that the peripheral matters as to the events of the day and the operation of the tractor, seem to me not to be of a kind which would raise any question of an incapacity to accept the child as an honest and accurate witness in relation to the incident the subject of count 2 on the indictment. Nor, I think, does such an incapacity arise from the 'lies' in relation to the length of time for which they had their pants down and whether the child sucked the appellant's penis, given the child's age, the lengthy cross-examination, his reluctance to speak of the matter at all, and
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- his evidently close relationship with his grandfather. Rather, I would think that the way in which the matter developed would tend to bolster the child's credit. It would be open to the jury to conclude that the child was motivated to avoid answering the questions about the act of penile penetration, but found he could not do so and then told the truth about what had occurred.
57 Finally in relation to this incident, I think no more can be drawn from the additional reference to acts of masturbation than that the child thought he had previously mentioned them, whereas in fact he had not done so. There was an omission, rather than a direct inconsistency between what the child said when questioned by the police and what he said when cross-examined. There can be no question of recent fabrication of this evidence.
The shower incidents
58 It will be recalled that the indictment reflects the prosecution case that the incident when the appellant masturbated himself in the shower until he ejaculated and then caused the child to taste his semen (count 3) was an occurrence on a different date from counts 1 and 2, and the incidents in the shower which were counts 4, 5 and 6 were on a different date again.
59 Certainly the child gave confused evidence about the separate occasions, the number of them and when they occurred. At one point, towards the end of his cross-examination, he said that there was only one such occasion and that was after he and the appellant returned from Mr B's farm and had a shower together, before eating their evening meal. At this stage of his evidence, the child described the occurrence of incidents like counts 4, 5 and 6. Again it will be instructive, I think, to see how the matter developed, but before doing so I should mention the way in which the trial judge dealt with the matter in his summing up.
60 After referring to the internal inconsistencies in the child's evidence, his Honour told the jury, favourably to the appellant:
It is for the state to satisfy you beyond reasonable doubt that count 3 on the one hand and any of counts 4, 5 and 6 on the other occurred on separate days from each other and on a day separate from counts 1 and 2. Further the state must satisfy you beyond reasonable doubt that [the child's] accounts of two separate shower incidents in the visually recorded interviews were not the product of confusion of one and only one shower incident which occurred on the same day as counts 1 and 2. If you believe that there is any reasonable possibility that [the child] was or has confused
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- the incidents said to constitute count 3 and then counts 4, 5 and 6 with an incident in the shower that occurred on the same day as counts 1 and 2, you cannot possibly find the accused guilty of counts 3, 4, 5 and 6. However, if the state has satisfied you beyond reasonable doubt that there was no such confusion, it would be open to you to find the accused guilty of any of those counts provided of course that you were satisfied beyond reasonable doubt that they occurred (ts 715).
61 The direction given by the trial judge certainly obviated any danger there might have been that the jury would record guilty verdicts other than in the way in which the prosecution case was opened to the jury. But of course, for present purposes, the proposition lying behind particular (viii) of Part (b) of the ground of the application is that the child's evidence was so confused that the jury should have found themselves to be incapable of relying upon it, so as to return the guilty verdicts in respect of any of counts 3 - 6 inclusive, and like the other particulars, the appellant adds the argument that this confusion was so fundamental as to deny the jury the capacity to rely upon the evidence of the child at all.
62 In the videoed interview conducted by police officers on 19 August 2005, after referring generally to 'gross stuff', the child spoke of what happened in the shower by saying:
When we were in the shower we did gross stuff in the shower. The same thing. Sucking, making them hard. Grandpop did this white stuff and we tasted it. It was from his willie (p 14).
63 When pressed for more detail later in the interview, the child firstly complained that the interview was 'taking forever', before implying that there were a number of such incidents when he and his grandfather were 'doing all the stuff that I told you'. He declined to say any more because, he said, he had already said what happened. Ultimately when, despite his objections, he was asked about the 'white stuff', he said this came out of the appellant's 'willie' while they were in the shower. He said the appellant made this happen because the child asked if he could do it. He said he tasted it just 'because'. It was his idea (p 37 - 38).
64 The child was asked about what happened in the shower when the second video interview was conducted by the police on 25 August 2005. Again he said he did not want to talk about it, but under further questioning he referred to an incident in which, while under the shower, both he and the appellant masturbated themselves. The child said he did not want to talk about it and asked if he could take a break (p 8 - 11).
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65 After the break, the questioning continued. The child said that he masturbated himself, the appellant masturbated himself, the appellant masturbated the child and the child masturbated the appellant. He clarified that by saying, in the order in which the events happened, that he masturbated himself first, following by the appellant masturbating himself. Then the appellant masturbated the child and the child masturbated the appellant. The whole thing only lasted for a short time (p 14 - 17).
66 The child appeared to be unable to say how long ago this had happened. He said it was a little while. He immediately corrected himself and said, 'Not a little while.' He said it was ten days ago (p 18). When he was in the country, about five months after March (p 19). The child said it happened a number of times, he did not know how many times (p 20). During this questioning, the child made it perfectly clear that he did not want to talk any more about what had happened, and the interview was terminated.
67 It seems to me that the combined effect of the two interviews was that the child said there were a number of occasions when activity of this kind occurred in the shower, and he mentioned two specific occasions. At the first interview he spoke of an incident which became count 3 on the indictment, and then at the second interview, without mentioning anything capable of constituting count 3, he described an incident which became counts 4, 5 and 6, omitting, of course, that part of the incident when the child said he masturbated himself.
68 The child was cross-examined about such matters when his evidence was pre-recorded. After being asked numerous questions about what I have called the tractor incident, the child said that when he and his grandfather returned home, they had a shower together that evening before having their evening meal. He was asked if anything had happened while they were in the shower. He said that the appellant did with his 'willie' what he did in the tractor and, 'some white stuff came out'. Further, he said, 'we fiddled with our willies'. He said, in answer to leading questions, that those things happened on no other occasion (ts 123 - 126). As I have said, that evidence was given towards the end of a lengthy cross-examination.
69 As the matter of incidents in the shower was left to them, the jury had to resolve a number of factual issues, bearing in mind the burden of proof borne by the prosecution, and the fact that the appellant gave evidence denying that any such thing had occurred. He said also that he
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- had erectile problems, in which evidence he was supported by his wife. If the jury rejected the appellant's denials, as they obviously did, they had to determine whether there were separate incidents grouped, as in counts 3, 4, 5 and 6 on the indictment, or whether the matters described might have occurred only on the evening after the tractor incident, in which case they were uncharged acts.
70 In my opinion, given the way the matters emerged during the course of the police interviews and the coherent nature of the evidence provided at that time, it was well open to the jury to conclude that those accounts given by the child were accurate, whereas what he said when cross-examined should be rejected as the product of the child's confusion at the end of a long and wearing process of cross-examination in which the child was, from the outset, an unwilling participant. In other words, I can see nothing in that process which would necessarily mandate the rejection of the child's evidence in its entirety.
Conclusion
71 Putting that in the terms adopted by Hayne J in Libke, I am not persuaded that this jury must have entertained a doubt about the appellant's guilt. It was open to them to make an assessment of the child's evidence which did not require the conclusion that the jury should necessarily have had a doubt about the appellant's guilt of any or all of the offences charged. Having made my own assessment of the case, I am not driven to the conclusion that I must have such a doubt and I would dismiss the application for leave to appeal.
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